In the Matter of H---- V

Board of Immigration AppealsSep 30, 1943
1 I&N Dec. 546 (B.I.A. 1943)

56154/177

Decided by the Board September 30, 1943

Warrant of arrest — Issuance — Voluntary departure.

1. A warrant of arrest should be issued by the district director under section 150.3 (a), title 8, C.F.R., only where the escape of the alien appears imminent.

2. An alien's right to apply for voluntary departure should be explained to him in simple, untechnical language.

CHARGE:

Warrant: Act of 1924 — Immigrant without immigration visa.

Mr. Irving Jaffe, Board attorney-examiner.


Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the presiding inspector and served on the alien on September 3, 1943, are hereby adopted.

Although the deportability of the alien has been clearly established, the record reveals a practice in the issuance of warrants of arrest and in the conduct of deportation hearings that we believe requires comment.

The warrant of arrest in the instant case was issued by the district director presumably under authority contained in section 150.3 (a), title 8, Code of Federal Regulations. This section of the regulations permits the officer in charge of a district to issue warrants of arrest in the following cases:

(1) In any case within the purview of sections 150.10 and 150.11 of this part, as provided therein; or

(2) In any other case in which it appears to the satisfaction of such officer that the alien may escape arrest unless the warrant is issued immediately.

The requirements in sections 150.10 and 150.11 of the code are not present in this case, and the warrant must therefore have issued under subdivision 2, cited above. This subdivision contemplates that unless the alien is immediately taken into custody he will abscond. The warrant of arrest, however, was issued on August 17, 1943, but was not received for execution by the San Diego office until August 25, 1943-8 days later. Furthermore, the warrant contains authority to release the alien on his own recognizance "if satisfied he will appear when wanted." The delay in the issuance of the warrant and the provision for the alien's release on his own recognizance are inconsistent with the spirit and purpose of section 150.3 (a) (2). The warrant should not have been issued by the district director if he was not already satisfied that the alien would not appear when wanted for further proceedings. It should be noted, further, that the likelihood that an alien may escape arrest, means that the alien, unless immediately apprehended, may obtain time to effectively continue his illegal residence in the United States; it does not mean that the alien is about to depart from the United States. In the case before us, it appears that the alien intended only to remain in the United States for a short time and was prepared to report for induction into the Mexican army on September 16, 1943. Because of what appears to be unnecessary delays, the alien has been kept in custody for approximately 5 or 6 weeks and is now liable to prosecution and imprisonment on his return to Mexico for failing to report for induction. Proper administration of the immigration laws need not have resulted in such consequences to the alien.

The alien was apprised of his right to apply for voluntary departure in lieu of deportation, but he did not avail himself of that privilege. The privilege was explained to the alien by paraphrasing the words of the statute. The words used are technical and as such may not convey to the alien the full significance of the rights and benefits offered. Simple justice would seem to dictate the extension of a right or privilege in every-day language clearly understandable to the prospective beneficiary. The alien should be aware that his failure to apply for the privilege of voluntary departure will make necessary an application for permission to reapply for admission before he may again enter the United States for any purpose and that such permission may be sought only after 1 year has elapsed following his deportation. And, conversely, that successful application for that privilege not only saves him from an adverse deportation record, but will enable him to apply for admission at any time that he satisfies the requirements of the immigration laws. Similarly, in appropriate cases, the meaning of the privilege of suspension of deportation should be fully explained in simple, untechnical language.

The evidence as a whole seems to indicate a desire on the part of the alien to leave the United States with dispatch and is not wholly consistent with his refusal to apply for voluntary departure. Because of this and because of the delay already suffered by the alien, we shall permit him to depart voluntarily in lieu of deportation forthwith.

ORDER: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States without expense to the Government, to any country of his choice, forthwith, under safeguards.